Democratic and Republican politicians alike are closely watching two gerrymandering lawsuits that could significantly affect the 2020 elections in North Carolina.
Both suits allege that the state legislature engaged in unconstitutional partisan gerrymandering when it was redrawing political districts to comply with court orders after losing separate lawsuits over racial gerrymandering. One deals with the U.S. Congress, and the other deals with the North Carolina General Assembly.
Racial and partisan gerrymandering are different in that courts have frequently ruled against racial gerrymandering, but not so with partisan gerrymandering. These two cases have the potential to change that — but one of the top Republican lawmakers in charge of redistricting has his doubts.
Maps for the state legislature
“The Democrats sued in federal court and won, but now that they didn’t get the results they wanted from those maps, they are suing again, asking a state court to draw new maps to replace those federally compliant maps, based on reading a brand new standard into the state constitution that no one on either side has ever believed existed,” Republican Rep. David Lewis of Harnett County said in a recent press release addressing one of the lawsuits.
Lewis was talking about the lawsuit challenging the districts used to elect members of the North Carolina General Assembly. Democrats ended the Republicans’ supermajority in the state legislature in the 2018 elections and want to take the majority in 2020. That could be more likely if this lawsuit forces the state to redraw its legislative districts before the 2020 elections.
It’s an important case because whichever party controls the state legislature after the 2020 elections will be in charge of the state’s next round of redistricting in 2021, following the 2020 census. The lawsuit against the legislature and other state officials was filed by the N.C. Democratic Party and the government watchdog group Common Cause.
In the latest developments in that lawsuit, Republican legislators moved the case to federal court on Dec. 14. Several days later they issued a press release saying they don’t want the case to be heard in state courts because they think judges in North Carolina might be too liberal to give them a fair trial. The North Carolina Supreme Court will soon have a 5-2 Democratic majority.
“This is nothing more than an attempted power grab by Democrats to convince the liberal state courts to help them steal control of the General Assembly in 2020 so they can draw new maps in 2021,” Republican Sen. Ralph Hise of Spruce Pine, another top legislator on redistricting, said in that Dec. 18 legislative press release.
That press release came the day after the Democrats filed a motion saying the Republicans didn’t have any legitimate reasons to remove the case from state court, and asking for it to be sent back. The federal district court judge in the case, Louise Flanagan of the Eastern District of North Carolina, gave the legislators until Dec. 28 to respond to the Democrats’ claims.
While legislators are worried about being in front of Democratic judges in North Carolina courts, Flanagan is a Republican judge who was nominated by former President George W. Bush.
Both in their court filings and outside of court, Democrats said the Republicans are just trying to create delays — so that even if the legislature does lose, it’ll happen too close to the 2020 elections for a court to force them to redraw the lines.
“Republican leaders have shown yet again that they are more interested in holding onto power at all costs, even if it means silencing North Carolina voters one last time,” NC Democratic Party spokesman Robert Howard said in an email.
Something similar happened in the other lawsuit, over North Carolina’s districts used to elect its 13 members of the U.S. House of Representatives.
Maps for the US House
This past August, a panel of federal judges ruled those districts contained unconstitutional partisan gerrymandering — that they were unfairly drawn in order to give Republican politicians an undue amount of power by disenfranchising non-Republicans.
But the plaintiffs — including Common Cause, which is also suing over the state legislative lines — agreed that even though they won the case, the ruling came too close to last year’s elections for the lines to be redrawn.
So the 2018 elections went on with the old lines, as the case was appealed. It’s now in front of the United States Supreme Court.
Democrats will go into 2019 with the majority in the U.S. House, even after failing to flip any seats in North Carolina in 2018 — although one seat, for the 9th District, could be subject to a new election due to allegations of fraud, The News & Observer has reported.
If this lawsuit forces the state to redraw its congressional districts before the 2020 elections, that could help Democrats gain even more seats in the House.
History could be made
Partisan gerrymandering is relatively uncharted legal territory. Judges at all levels of the judicial system have frequently ruled — at least in recent years — that racial gerrymandering is unconstitutional.
North Carolina in particular has lost numerous racial gerrymandering lawsuits, related to the state’s Republican-led 2011 redistricting plans as well as the Democrat-led redistricting plans in the 1980s and 1990s. The redistricting fights of the ‘90s went to the U.S. Supreme Court five separate times, according to a report by the National Conference of State Legislatures.
The New York Times reported in June that the U.S. Supreme Court had a chance to rule on the constitutionality of partisan gerrymandering, with cases from Wisconsin and Maryland, but the justices didn’t “address the central questions” of the issue at the time.
So if the U.S. Supreme Court decides to rule on the issue of partisan gerrymandering, it’s possible the North Carolina case over the 13 congressional districts could be the first.
The court is considering both the North Carolina case, which alleges partisan gerrymandering by Republicans, as well as the same case out of Maryland from June, which alleges partisan gerrymandering by Democrats. The Washington Post reported last month in a story on the Maryland case that the Supreme Court “could consider combining it” with the North Carolina case.
And a lawyer for the North Carolina plaintiffs, Paul Smith, said in a December email that by the time the court considers their case, “the Maryland case, Lamone v Benisek, will also be ready for consideration.”
The North Carolina case was on the Supreme Court’s schedule for discussion among the justices earlier this month but was rescheduled until Jan. 4, 2019.
Emmett J. Bondurant, another attorney for the North Carolina plaintiffs, said in an email that it’s possible the court might announce what it will do with the case on Jan. 7.